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New York State Court of Appeals Ruled that a City Pathologist’s Retention of a Deceased Teen’s Brain was not Illegal

— June 14, 2015


The New York State Court of Appeals ruled that a city pathologist’s retention of a deceased teen’s brain was not illegal. It was a 5-2 ruling and overturned a jury award of $600K to the teen’s family.

The case reads like a horror novel. A young man, 17, is killed in an auto accident on Staten Island on January 9, 2005. An autopsy was performed, during which the young man’s brain was removed and retained for examination by a neuropathologist.

Dr. Stephen de Roux, the pathologist, informed Andre Shipley that he would perform an autopsy on Jesse Shipley’s body. The Shipley’s suit claims that Mr. Shipley “asked the medical examiner to make decedent’s body as ‘presentable as possible’ for the funeral.” At this point, you might be wondering why I said it reads like a horror novel.

The family held the funeral with no complications. No complications of which they were aware.

In March of 2005, Jesse’s high school class toured the medical examiner’s office on a field trip. Some of them made a gruesome discovery: a jar labeled “Jesse Shipley” that contained their friend’s brain. Jesse’s classmates told his sister who told her parents, who now faced the horrible realization that they had buried their 17-year old son without his brain.

The Shipley’s filed suit based on the common-law “right of sepulcher,” which gives a decedent’s next of kin the right to the decedent’s body for preservation and burial. Jesse’s parents had a second funeral for him in October 2005, after they received his brain and other organs that had been retained for examination.

The Shipley’s claimed that Dr. de Roux mishandled their son’s organs and interfered with the family’s right to his “whole body” and that he negligently caused them emotional distress. The lower court ruled in favor of the Shipleys, stating that Dr. de Roux failed to inform the family of the organ removal, even though the doctor had told them he was going to perform an autopsy. This knowledge, the court explained, would have given the Shipley’s a chance to postpone Jesse’s funeral until he was once again “whole” or to proceed without the organs.

The jury awarded the Shipleys $1M in damages, which was later reduced on appeal to $600K. The city appealed to the state’s highest court. Judge Eugene F. Pigott, Jr. wrote the Court’s opinion, stating that as long as the city returned Jesse’s body to his family, it had acted within the law.

He continued, “It is the act of depriving the next of kin of the body, and not the deprivation of organ or tissue samples within the body, that constitutes a violation of the right of sepulcher.” [Emphasis in original]

A representative for the city said it was “pleased” with the Court’s ruling. Further, policy changes were made because of the case; now, families are notified when organs are kept.

Writing for the dissent, Judge Jenny Rivera and Chief Judge Jonathan Lippman stated that public health laws do not allow the city the right to return bodies to families with important parts missing.

Marvin Ben-Aron, the Shipley’s attorney, said the family is distraught. “They feel, essentially, that they were wronged by the city 10 years ago and there’s just no closure for them,” he said.


Pathologist Didn’t Break Law in Missing-Brain Autopsy Case, Court Finds

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